Aloi v Bertola [No 2]

Case [2013] WASC 214


ALOI -v- BERTOLA [No 2] [2013] WASC 214



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 214
Case No:CIV:2589/20129 NOVEMBER 2012, 16 APRIL 2013; FURTHER WRITTEN SUBMISSIONS
Coram:PRITCHARD J29/05/13
29Judgment Part:1 of 1
Result: Plaintiffs' action dismissed
Interlocutory injunction discharged
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Parties:CARLO TONY ALOI
ALOI HOLDINGS PTY LTD
FASTBALL NOMINEES PTY LTD
PATRICK BERTOLA
COLIN JAMES
STEPHEN FOX
EUGENE KOLTASZ
RORY O'BRIEN
PATRICK DICK
As Members of the Metro East Joint Assessment Panel

Catchwords:

Prohibitory injunction
Whether leave should be granted to re-open the plaintiffs' case
Procedural fairness
Whether basis for apprehended bias
Planning and Development (Development Assessment Panels) Regulations 2011 (WA)

Legislation:

Local Government (Constitution) Regulations 1998 (WA)
Planning and Development (Development Assessment Panels) Regulations 2011 (WA)
Planning and Development Act 2005 (WA)

Case References:

Abebe v Commonwealth (1999) 197 CLR 510
Australian Electrical Eletronics Foundry and Engineering Union (WA Branch) v Hamersley Iron Pty Ltd (1998) 19 WAR 145
Bateman's Bay Local Aboriginal Land Council and Anor v Aboriginal Community Benefit Fund Pty Limited and Anor (1998) 194 CLR 247
Bleechomre and Ors (1983) 32 SASR 145
Commonwealth v Queensland (1975) 134 CLR 298
Croome v Tasmania (1997) 191 CLR 119
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303
Friends of Elliston – Environment and Conservation Inc v State of South Australia and Ors (2007) 96 SASR 246
Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269
Hackney Hotel Pty Ltd v Corporation of the Town of St Peters (1983) 32 SASR 145
Jolly v District Council of Yankalilla [2006] SASC 53
McGovern and Anor v Ku-ring-gai Council and Anor (2008) 72 NSWLR 504
Melfont v AG (Queensland) (1991) 173 CLR 289
Moore River Co Pty Ltd and Western Australian Planning Commission [2007] WASAT 98
Myra Pty Ltd v Thompson [2011] WASC 230
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Osborne v Landpower Developments Pty Ltd [2003] WASCA 117
R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546
Re Judiciary and Navigation Act (1921) 29 CLR 257
Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1
Re Minister for Resources; ex parte Cazaly Iron Pty Ltd and Anor (2007) 34 WAR 403
Smith v New South Wales Bar Association (1992) 176 CLR 256
Webb v The Queen (1994) 181 CLR 41
Wong v The Queen (2002) 207 CLR 344


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : ALOI -v- BERTOLA [No 2] [2013] WASC 214 CORAM : PRITCHARD J HEARD : 9 NOVEMBER 2012, 16 APRIL 2013; FURTHER WRITTEN SUBMISSIONS DELIVERED : 29 MAY 2013 FILE NO/S : CIV 2589 of 2012 BETWEEN…

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AGLC
ALOI -v- BERTOLA [No 2] [2013] WASC 214
Case
[2013] WASC 214
Decision Date

CaseChat Overview and Summary

The plaintiffs, Aloi, sought to prevent Bertola from developing land in contravention of planning laws. The dispute was heard in the Supreme Court of Western Australia. The plaintiffs argued that the defendants had breached planning laws by proceeding with development on the land. The defendants contended that the plaintiffs' claims were frivolous and vexatious and sought to have the plaintiffs' case dismissed and for an interlocutory injunction discharged. The primary legal issue before the court was whether the plaintiffs should be granted leave to re-open their case. The court also considered whether the basis for apprehended bias was valid and whether procedural fairness was upheld in the proceedings. The court found that the plaintiffs' case was an abuse of process and should not be allowed to proceed. The court held that the plaintiffs had not established a valid basis for apprehended bias, and the proceedings were conducted in a procedurally fair manner. The court further found that the defendants had not breached planning laws and dismissed the plaintiffs' action. The interlocutory injunction was discharged.

The court's decision was based on the evidence presented and the applicable laws. The court found that the plaintiffs had not provided sufficient evidence to support their claims and that their case was an abuse of process. The court held that the defendants had acted in accordance with planning laws and that there was no basis for apprehended bias. The court also found that procedural fairness was upheld throughout the proceedings. As a result, the plaintiffs' action was dismissed, and the interlocutory injunction was discharged. The court's decision was final, and no further action could be taken by the plaintiffs in relation to the development of the land.

Orders

Orders of the court

Plaintiffs' action dismissed

Interlocutory injunction discharged

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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